Case: 22-40731 Document: 00517057866 Page: 1 Date Filed: 02/06/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
February 6, 2024
No. 22-40731 Lyle W. Cayce
____________ Clerk
Larry Donnell Gibbs,
Plaintiff—Appellant,
versus
Jackson; Moton; Jared C. Oneal; John L. Ruffin; Joe
Thomas,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:21-CV-484
______________________________
Before Stewart, Clement, and Ho, Circuit Judges.
Edith Brown Clement, Circuit Judge:
Larry Donnell Gibbs’s pro se complaint was dismissed for failure to
timely effect service. Because the district court abused its discretion in
denying Gibbs leave to proceed in forma pauperis, we REVERSE and
REMAND.
I.
Gibbs filed a pro se complaint under 42 U.S.C. § 1983 against five
officers of the Texas Department of Criminal Justice. Gibbs alleged that, on
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No. 22-40731
March 21, 2020, another inmate stabbed him nine times and that two of the
defendants—whom he identified only by their last names, Jackson and
Moton—had allowed Gibbs to bleed out for forty-five minutes before
rendering aid. Gibbs further alleged that, in retaliation for Gibbs filing a
grievance about the officers’ negligent response to his stabbing, three other
officers—Jared Oneal, John Ruffin, and Joe Thomas—authorized or used
excessive force against him on two separate instances, first in July 2020 and
again in August 2020. Gibbs claims that these beatings caused swelling and
bleeding in his brain which led to a seizure and resulted in post-seizure
paralysis, confining Gibbs to a wheelchair.
Gibbs paid the filing fee but was unable to effectuate service upon the
defendants himself. After a months-long back-and-forth process between
Gibbs and the district court, Gibbs filed a motion to proceed in forma
pauperis, which would have entitled him to have service made by a United
States marshal, see Fed. R. Civ. P. 4(c)(3), along with a copy of his inmate
trust account statement showing a balance of $140.43. The magistrate judge
denied his motion on three bases. First, the magistrate judge held that the
motion to proceed in forma pauperis was moot because Gibbs had paid the
filing fee. Second, the magistrate judge determined that, to the extent Gibbs
was seeking in forma pauperis status for service, $140.43 was “sufficient
funds to prosecute this action by serving the defendants.” Third, the
magistrate judge found that granting Gibbs leave to proceed in forma
pauperis would be futile because he had not provided the addresses of the
defendants as required for service of process. Gibbs’s motion for
reconsideration was denied, and his complaint was dismissed without
prejudice. Gibbs timely appealed, and the district court granted him leave to
proceed in forma pauperis on appeal.
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II.
We review the district court’s decision to deny Gibbs leave to proceed
in forma pauperis for abuse of discretion, which occurs when the basis for the
decision was arbitrary or erroneous. Flowers v. Turbine Support Div., 507 F.2d
1242, 1244 (5th Cir. 1975). If the district court abused its discretion, we must
reverse the dismissal for failure to serve process “unless the denial of pauper
status neither prevented [Gibbs] from [serving the defendants] nor
prejudiced [his] chances of [effecting service] or unless there was an adequate
independent ground for the dismissal.”
Id. at 1245.1
III.
The district court abused its discretion in denying Gibbs in forma
pauperis status. First, the court held that “[s]ince [Gibbs] paid the filing fee
in this action, [his] current motions to proceed in forma pauperis are moot.”
But “a person not a pauper at the commencement of a suit may become one
during or prior to its prosecution,” so it was error to deny Gibbs’s application
“simply because he made an initial decision to attempt to pay his own way.”
Flowers, 507 F.2d at 1245. Second, the court arbitrarily determined that the
$140.43 in Gibbs’s inmate trust account was “sufficient funds” for Gibbs to
serve the defendants. As Gibbs represented in his motion for reconsideration,
_____________________
1
“If the applicable statute of limitations likely bars future litigation, a district
court’s dismissal of claims under Rule 4(m) should be reviewed under the same heightened
standard used to review a dismissal with prejudice,” i.e., dismissal “is warranted only
where a clear record of delay or contumacious conduct by the plaintiff exists and a lesser
sanction would not better serve the interests of justice.” Thrasher v. City of Amarillo, 709
F.3d 509, 512–13 (5th Cir. 2013) (quotation marks and citations omitted). Because Gibbs’s
§ 1983 claims are subject to a two-year statute of limitations, see King-White v. Humble
Indep. Sch. Dist.,
803 F.3d 754, 761 (5th Cir. 2015) (citing Tex. Civ. Prac. & Rem.
Code § 16.003(a)), at least some of Gibbs’s claims would likely be time-barred. But we
need not decide which standard applies because even under the more lenient abuse-ofdiscretion standard, the district court erred.
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No. 22-40731
it would cost him $450 to pay for a United States marshal to effect service.
And in any event, there is no requirement that an individual “be absolutely
destitute” or spend “the last dollar they have” towards the payment of court
costs to enjoy the benefit of in forma pauperis status. Adkins v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 339 (1948). Third, the court found that granting
Gibbs leave to proceed in forma pauperis would be futile because he had not
“provid[ed] addresses of the defendants for service of process.” But a
district court’s determination of whether a party may proceed in forma
pauperis must be based solely upon economic criteria. Watson v. Ault,
525
F.2d 886, 891 (5th Cir. 1976); see also Bell v. Children’s Protective Servs.,
506
F. App’x 327, 327–28 (5th Cir. 2013) (finding abuse of discretion where the
district court’s denial of leave to proceed in forma pauperis rested on noneconomic grounds).
The decision to deny Gibbs in forma pauperis status prejudiced his
chances of effecting service. See Flowers, 507 F.2d at 1245. Indeed, had he
been granted leave to proceed in forma pauperis, Gibbs would have been
“entitled to rely upon service by the U.S. Marshals.” Rochon v. Dawson,
828
F.2d 1107, 1110 (5th Cir. 1987); see also Fed. R. Civ. P. 4(c)(3) (requiring
a district court to “order that service be made by a United States marshal or
deputy marshal or by a person specially appointed by the court . . . if the
plaintiff is authorized to proceed in forma pauperis”). And Gibbs’s failure to
provide current addresses for the defendants who were no longer employed
by the Texas Department of Criminal Justice did not provide an “adequate
independent ground” for dismissing his complaint. See Flowers,
507 F.2d at
1245. To the contrary, we have regularly reversed dismissals where, as here,
a pro se plaintiff has been unsuccessful in serving former prison officials
“simply because [the official’s] employment status with the [prison]
changed, and [the plaintiff] did not know how else to find [the official].”
Ancar v. Robertson, No. 19-30524,
2022 WL 1792535, at *4 (5th Cir. June 2,
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2022); see also Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 447–48 (5th Cir.
1996) (finding abuse of discretion despite plaintiff’s failure to “provide the
addresses of all the parties that had to be served”); Sanchez v. Perez, No. 96-
40049,
1996 WL 512289, at *2 & n.6 (5th Cir. Aug. 30, 1996) (reversing
dismissal for failure to timely serve process where plaintiff had “attempted,
in several ways, to obtain the new addresses of [the prison officials]” and
“could get no response from the Texas Department of Corrections on the
[officials’] current whereabouts”).
IV.
The judgment of the district court is REVERSED, and the case is
REMANDED with instructions for the district court to permit Gibbs to
proceed in forma pauperis in this action.
5
